SCOTUS: Trump Not Above Law, Must Release Taxes

A mixed ruling: New York wins, Congress loses--but no release before the election.

Breaking from the LA Times: “Supreme Court deals Trump a defeat, upholds demands for his tax returns

The Supreme Court dealt President Trump a major defeat Thursday by rejecting his claims of presidential immunity and upholding subpoenas from New York prosecutors seeking his tax returns and financial records.

In one of the most anticipated rulings on presidential privilege in years, the justices by a 7-2 vote ruled the nation’s chief executive is not above the law and must comply with legitimate demands from a grand jury in New York that was investigating Trump’s alleged hush money payments to two women who claimed to have had sex with him.

Trump had sued to block the subpoenas and claimed that as president he had an “absolute immunity” from demands for personal or confidential information.

The election-year dispute had an obvious political significance, but it was also the rare separation of powers case in which the powers of the president, Congress and the judicial system were all at issue.

In past rulings on similar high-profile cases, the court had unanimously ruled that the president is not above the law, forcing President Nixon to hand over the Watergate tapes and President Clinton to be deposed in the Paula Jones harassment lawsuit.

Unlike other presidents since the Watergate era of the 1970s, Trump refused to disclose his tax returns and has kept secret the details of his business dealings. Investigators were particularly interested in whether Trump and his businesses were heavily indebted to foreign banks.

I haven’t had time to read the decision and likely won’t for a couple of hours. This stub will give folks a place to discuss the case. I may weigh in with further thoughts later.

I gather that the opinion addressed obvious potential for abuse by political enemies and noted that a President would still have the protections available to any other citizen.

I also gather that the release won’t be immediate, as the case was remanded to the 2nd Circuit.

UPDATE (1034): Okay, I can’t concentrate on the writing I actually need to get done, anyway. WaPo’s Robert Barnes (“Supreme Court says Manhattan prosecutor may see Trump’s personal financial records“):

The Supreme Court ruled Thursday that a New York prosecutor is entitled to see President Trump’s private and business financial records, ending an intense legal battle waged by the president to keep them secret.

The court said Manhattan District Attorney Cyrus R. Vance Jr. had the authority to subpoena the records from Trump’s private accounting firm. Trump had claimed an immunity from criminal investigations while in office.

[…]

The court will rule later Thursday on subpoenas issues by congressional committees for a broader range of Trump’s financial records.

Barnes, too, is updating as he goes.

NYT’s Adam Liptak (“Supreme Court Rules Trump Cannot Block Release of Financial Records“):

The Supreme Court ruled Thursday that President Trump can for now block the release of his financial records to Congress but that prosecutors in New York may see them, a stunning defeat for Mr. Trump but a decision that probably means the records will be shielded from public scrutiny until after the election, perhaps indefinitely.

The vote in both cases was 7 to 2.

That is most unsatisfying.

UPDATE (1101): Skimming the case syllabus itself:

Article II and the Supremacy Clause do not categorically preclude,
or require a heightened standard for, the issuance of a state criminal
subpoena to a sitting President.

[…]

(a) In 1807, John Marshall, presiding as Circuit Justice for Virginia
over the treason trial of Aaron Burr, granted Burr’s motion for a subpoena duces tecum directed at President Jefferson. In rejecting the
prosecution’s argument that a President was not subject to such a subpoena, Marshall held that a President does not “stand exempt” from
the Sixth Amendment’s guarantee that the accused have compulsory
process for obtaining witnesses for their defense.

[…]

This history all involved federal criminal proceedings. Here, the
President claims that the Supremacy Clause gives a sitting President
absolute immunity from state criminal subpoenas because compliance
with such subpoenas would categorically impair the performance of his
Article II functions.

[…]

The President’s unique duties as head of the Executive Branch
come with protections that safeguard his ability to perform his vital
functions. The Constitution also guarantees “the entire independence
of the General Government from any control by the respective States.”

[…]

[T}he Court expressly rejected immunity based on distraction alone 15 years later in Clinton v. Jones, when President Clinton sought absolute immunity from civil liability for private acts. As the Court explained, Fitzgerald’s “dominant concern” was not mere distraction but the distortion of the Executive’s “decisionmaking process.”

[…]

[T]he President argues that subjecting Presidents to state
criminal subpoenas will make them “easily identifiable target[s]” for
harassment. Fitzgerald, 457 U. S., at 753. The Court rejected a nearly
identical argument in Clinton, concluding that the risk posed by harassing civil litigation was not “serious” because federal courts have the tools to deter and dismiss vexatious lawsuits.

[…]

Rejecting a heightened need standard does not leave Presidents
without recourse. A President may avail himself of the same protections available to every other citizen, including the right to challenge
the subpoena on any grounds permitted by state law, which usually
include bad faith and undue burden or breadth.

It’s noteworthy that only Thomas and Alito dissented, meaning both Justices appointed by Trump joined the majority.

The closing argument is powerful:

Two hundred years ago, a great jurist of our Court established that no citizen, not even the President, is categorically above the common duty to produce evidence when called upon in a criminal proceeding. We reaffirm that principle today and hold that the President is neither absolutely immune from state criminal subpoenas seeking his
private papers nor entitled to a heightened standard of
need. The “guard[] furnished to this high officer” lies where
it always has—in “the conduct of a court” applying established legal and constitutional principles to individual subpoenas in a manner that preserves both the independence of the Executive and the integrity of the criminal justice system.

As to the remand:

The arguments presented here and in the Court of Appeals were limited to absolute immunity and heightened need. The Court of Appeals, however, has directed that the case be returned to the District Court, where the President may raise further arguments as appropriate.

Offhand, while unsatisfying because the matter doesn’t end here, the reasoning and outcome seem quite reasonable.

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FILED UNDER: Law and the Courts, Supreme Court
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Michael Reynolds says:

    The relevant question to me is whether this will lead to public disclosure before the election. If it will, and if Trump realizes it will, I think the odds of a resignation will rise.

    6
  2. @Michael Reynolds: I was thinking this morning, in anticipation of this potential outcome, about the massive strategic miscalculation of gambling on this issue in a way that appears to be leading to disclosure at the worst possible time for Trump.

    Better to have released years ago.

    13
  3. inhumans99 says:

    Normally, I stay away from the legal threads because saying that this is a lane I should not drive in is the understatement of the year.

    If I understand correctly, the Supremes are saying that if a “lower” court ruling goes against Trump he either has to perform the action requested of him by the court or appeal, but there is now a ceiling for how far he can take his appeals of a ruling he does not like.

    So, he could appeal but if the appeals court judge basically says, sorry Mr. President but my colleagues ruling from the 2nd circuit is on firm ground and your appeal is denied he is stuck.

    Prior to today’s ruling if he did not like a series of ruling by the lower courts he could just default to I will let the Supremes take up this matter, but today it seems the Supremes have told Mr. Trump to stop wasting their time as they will no longer expend any of their valuable time on Trump’s fight to prevent the release of his taxes.

    Well, that is all I have to say and I will defer to folks like Harvard to educate me on matters of the court.

    3
  4. Michael Reynolds says:

    @Steven L. Taylor:
    Beyond even exposure, Trump will know whether Vance now has in his hands evidence to justify an indictment. Pence can’t pardon his way out of this. If Trump loses, he’s likely to be arrested. His only paths are victory or flight. If he decides he cannot win – and he can’t – his best option is to GTFO of the country.

    6
  5. gVOR08 says:

    So the State of New York gets his records, including his taxes, which they’d get anyway as soon as Trump is out of office. But subject to grand jury confidentiality. And what I skim on the congressional subpoenas is confusing, but at a minimum it’s back to the lower court for a decision.

    Assuming current polling has some validity, Trump will lose in four months and cease being prez in six. Unless Reynolds is right and he bails. Gawd I’d love to be a fly on the wall when Putin tells Trump he won’t let him into Russia because rule of law and international norms and comity with the incoming administration (and you’re of no further use to me, sucker, and your loans are due).

    So nothing is coming out before the election and the only practical effect is the Manhattan DA gets an early start. And Trump’s legal strategy of delay has succeeded. Wasn’t there something in the Constitution about speedy trials, or is that only criminal, where no one gets a speedy trial either.

    5
  6. Teve says:

    Somebody joked, “Supreme Court says president not above the law, Postdates it to Biden.”

    7
  7. JohnSF says:

    @Michael Reynolds:
    Who’d have him?

    Any country giving him refuge would be looking at diplomatic bad times.
    And US investigators up the wazoo on their financial dealings.
    Russia maybe; but
    1) Putin doesn’t strike me as mister sentimental
    2) If Trump ends up losing the bratva a shedload of money, Russia might not be a healthy place to hang out.

    1
  8. Kylopod says:

    Translation: SCOTUS protects Trump’s tax returns from public exposure prior to the election, and the gullible news media calls it a rebuke of Trump.

    9
  9. Joe says:

    @Michael Reynolds:
    I don’t think anyone will see any records before November. I think the political calculation of these decisions is that they get to tell Trump (and his successors) that no president is above the law, but, based on the remands over details, this decision will delay actual disclosure for well over four months so as not to throw this bomb into the political process here. Nonetheless, Vance will have his day and, eventually, Congress may have theirs.

    2
  10. Erik says:

    I agree that the public won’t see any evidence before the election, but that doesn’t matter; there are few persuadable people so the outcome does not hinge on release of evidence. What matters here is that rule of law has been upheld

    7
  11. Daryl and his brother Darryl says:

    @Michael Reynolds:
    @Steven L. Taylor:
    We likely won’t see the taxes before the election…but only the most cultish of the cult will want to elect a guy likely to be indicted.

    1
  12. inhumans99 says:

    @Kylopod:

    I am not going to fight you on your belief that this was not a rebuke of the President. Obviously, having just typed that out I respectfully disagree. Prosecutors in NY have been fighting for years to get the ability to go through his financials with a fine tooth comb and now they pretty much have permission to do so.

    Trump can prevent ordinary Joes like you and I from seeing the records but ultimately who cares if I do not get to see the records any time soon. The folks who can actually do something with the information are the ones that I really only care about providing access to the records and it seems pretty clear cut to me that Trump has very limited options to continue dragging out denying attorneys in NY access to his financial records.

    Honestly, at this point since he is the man who could shoot someone on 5th avenue and not lose voters (maybe slightly less true a statement than it was 6 months back, but I will let it stand for now) he should go ahead and release the un-redacted tax returns while he still has time to let FOX, Breitart, OAN, the folks on Parler, Lucianne, Gateway, Tucker Carlson’s site, etc. provide the spin needed to tell everyone his taxes turned out to be a nothing burger for us liberals who thought we finally had something to hold against him.

    That way, the tax thing dominates the news cycle for a brief period of time and then everyone forgets about it come election time and he ends up re-elected.

    Time is running out for him to to take this course of action.

    4
  13. Daryl and his brother Darryl says:

    @Kylopod:

    the gullible news media calls it a rebuke of Trump.

    Trump claimed to be above the rule of law.
    SCOTUS said nuh-uh, Mr. Trump…your stupid legal argument is stupid.
    Ipso facto…rebuke.

    2
  14. Michael Reynolds says:

    @JohnSF:
    Philippines. The government is corrupt and fascistic and Trump already owns property there.

    7
  15. CSK says:

    Trump’s having a screaming fit on Twitter.

    5
  16. Scott F. says:

    It’s noteworthy that only Thomas and Alito dissented, meaning both Justices appointed by Trump joined the majority.

    We likely won’t see the taxes before the election, so I’d expect no voting impact from this decision deriving from what his taxes will show.

    But, the fact the Gorsuch and Kavanaugh voted with the majority is not going to go over well with the Trumpkins who’ve been crowing about Trump’s success with seating judges. Regardless of the legal reasoning on this case with either of them, the Trump appointees were sold to the base as GOP team players.

    Trump has very few legitimate wins to boast of from his term with judges being one of them. Gorsuch and Kavanaugh joining the majority in this case will be seen as a demoralizing defeat by the cultists.

    4
  17. JohnSF says:

    Curiosity just got the better of me and I looked at Trump’s twitter account.
    Wow!
    Lets go nutttsss!
    Seriously, it has to be seen to be believed.
    Even for Trump it’s an off-the-scale meltdown.

    1
  18. Kylopod says:

    @JohnSF: I just took a screenshot of it a few minutes ago.

    3
  19. JohnSF says:

    @Kylopod:
    It will be in the history books of the future, I suspect.

  20. Kingdaddy says:

    The President’s unique duties as head of the Executive Branch
    come with protections that safeguard his ability to perform his vital
    functions.

    When these discussions about the President’s “vital functions” come up, I think it’s definitely relevant to say that he’s not taking care of them. I wonder if, in the SCOTUS deliberations, there were any discussions about this point. Probably not, but it would be gratifying to see the justices debate whether someone who spends his day watching TV, poop-tweeting, and golfing deserves the protections to presidents who take the job seriously.

    5
  21. Kingdaddy says:

    @Kylopod: As close as an objective portrait for his unfitness for office as you’ll ever get.

    3
  22. CSK says:

    He’s been raving on Twitter for the past four hours.

    2
  23. grumpy realist says:

    Any POTUS who plays as much golf as Trump does has already forfeited any argument based on “I don’t have enough time to deal with a legal case.”

  24. Just nutha ignint cracker says:

    @Steven L. Taylor:

    Better to have released years ago.

    There’s an old adage that seems to apply, something about it always being the cover up and never the crime, or something like that.

    2
  25. Barry says:

    “The President’s unique duties as head of the Executive Branch come with protections that safeguard his ability to perform his vital functions.”

    Jones v. Clinton, I believe?

    1
  26. Kathy says:

    @CSK:

    Must be one of those days that end in “y” I’ve heard so much about lately.

    Seriously, if these decisions were not a defeat for Trump, he’d be crowing about it, calling everyone names, and planning a super-duper rally in some big city.

    Somewhat less seriously, I predict a “sore loser” spot from The Lincoln Project.

    1
  27. flat earth luddite says:

    @Just nutha ignint cracker:

    Tru dat! Nixon and Capone come to mind and say what we will, Fearless Leader is not up to either’s level of competence.

    1
  28. CSK says:

    @Kathy:
    Someone should put Trump on the phone to Rush Limbaugh, who will explain to him why this is a big win for him.

    1
  29. Pylon says:

    It is IMO still a wide open question whether Trump can play delay games until the election. The judges control their docket and can insist on tight timelines for any issues (which will be BS) that Trump raises. After all, they have had these last few months to prepare for a SCOTUS loss and any further arguments,

  30. Kurtz says:

    @Michael Reynolds:

    His only paths are victory or flight. If he decides he cannot win – and he can’t – his best option is to GTFO of the country.

    Too bad for him EU countries are off the table. So that leaves Russia, China, and–maybe he and Kim Jong Il really did fall in love.

  31. Kurtz says:

    @JohnSF:

    1) Putin doesn’t strike me as mister sentimental

    I don’t know about that. I’m sure he has framed pictures of the bombed out apartment buildings of Volgodonsk somewhere. Probably in view of his sex bed.

    Not sure if you’re a gridiron fan, but Bill Belichick teared up when returning to Giants Stadium. Not exactly Mr. Sentimental either.

    If Trump ends up losing the bratva a shedload of money, Russia might not be a healthy place to hang out.

    Polonium is easy to smuggle anyway…

  32. Pylon says:

    @Kingdaddy: Unfortunately I think the Justices have to base the decision on the hypothetical role of a president and not what this one actually does (or doesn’t do as it happens). That said, I can’t even imagine a president as busy as, say, Obama, not being required to obey subpoenas of documents. It’s not like he gathers them personally.

  33. Tyrell says:

    I have various opinions on this tax reveal issue. I remember a discussion class years ago that dealt with this sort of issue, so this does not relate to my feelings about Trump one way or the other. In fact I have been a loyal member of the Southern Wing of the Democratic (not Dixiecrat) party before I could vote.
    Once this sort of thing starts, where is the line drawn? Just who would be next if presidents have to show their returns? How far can it go? Governors, mayors, teachers, police chiefs, school bus monitors, building inspectors, recreation department referees, assistant dog catchers? If the president has to show his, everyone’s returns are now fair game.
    Tax returns now, what is next? Health records, grade school report cards, credit card purchases, driving records, military records, library book lists, and telephone records?
    How about my tax returns? How safe are those from a bureaucrat with some sort of beef?
    I remember a few years ago some news commentator somehow got hold of some of Trumps returns. If I remember, there was nothing special, no sensational deductions or tricks. In fact he paid a higher tax rate than Bernie Sanders and President Obama. “I guess that’s all there is” It seems that the IRS and state tax people would have turned up anything illegal.
    Any citizen is allowed to take full advantage of tax strategies and deductions.
    I would not mind showing my tax returns if someone could explain why I am paying close to a 40% tax rate.
    Those are my concerns about this issue.
    Are these Supreme Court Judges putting their tax returns out there for us to look at?

  34. Just nutha ignint cracker says:

    @Tyrell: You seem amazingly upset about this. What is it that you think you need to be able to conceal?

    Remember, “sunlight is the best disinfectant.”

    ETA: If you are actually paying a 40% Federal Income Tax rate, you need to get someone better to do your taxes. And you are probably more prosperous than you imagine. 😛

    2
  35. An Interested Party says:

    Someone should put Trump on the phone to Rush Limbaugh, who will explain to him why this is a big win for him.

    Actually, here’s an interesting article explaining why the author thinks that it is a win for Trump…thankfully, Trump has done enough to hurt himself in November that the Democrats don’t really need this as more ammo to use against him…

  36. Kathy says:

    @Just nutha ignint cracker:

    Imagine if the government had access to your tax records!

    4
  37. Tyrell says:

    @Just nutha ignint cracker: Adjusted income below $50,000.

  38. An Interested Party says:

    Adjusted income below $50,000.

    And you’re paying a 40% tax rate? Do you know to compute percentages accurately?

    2
  39. JohnMcC says:

    @Teve: I’ve read twice today that this is Justice Roberts’ effort to ensure that Democrats don’t pack his Court next year. Seems pretty realistic to this non-legal-mind.

    See, I really am trying to be cynical enough to deal with the 21st century.

  40. An Interested Party says:

    I’ve read twice today that this is Justice Roberts’ effort to ensure that Democrats don’t pack his Court next year.

    I’ve seen that too…makes sense from his perspective, but they should still go ahead and pack the court(s)…if Republicans had been denied a SCOTUS seat they would certainly do what the Democrats are thinking about doing…

  41. DrDaveT says:

    @An Interested Party:

    Adjusted income below $50,000, and you’re paying a 40% tax rate?

    Yeah, I called him on this last time it came around. Either it’s not true, or his tax preparer is incompetent.

  42. @DrDaveT: Yeah, it makes no sense. The top marginal rate is 37% and you have to be making serious coin to get to that rate.

    2
  43. JohnSF says:

    @Kurtz:
    Gridiron being American football, correct?
    Interesting game, sort of like rugby if the players stopped for tea every five minutes 🙂

    2
  44. Kurtz says:

    @JohnSF:

    Yes. Had a Mr. Burns moment.

  45. mattbernius says:

    @Steven L. Taylor & @DrDaveT:
    Well, I mean in the same post he also claims that he’s a lifelong and loyal Southern Democrat (not Dixiecrat)… and we’ve all read his Trump apologia and critiques of the Democratic party for at least the last 3 years (though I’m sure he’ll swear up and down that he voted for that well-spoken colored fellow at least once). So his (self)awareness might need a little calibration.

  46. @mattbernius: It also remind me of repeated claims that he and his wife use disposable utensils and plates because the cost of water is too high when they wash dishes. It seems impossible to me that that is an economically smart trade-off.

    1
  47. @Steven L. Taylor: What, sadly, may be in operation is the notion that right wing media has tried for decades to convince everyone that they are taxed to death.

    1
  48. @JohnSF: I have long wanted to write a book to illustrated comparative governemnt by focused on the way in which soccer, American football, Canadian football, Australian rules football, and rugby all evolved from the same basic source but how choices made along the way evolved into the current games as we understand them (as a way of showing, for example, variations in democratic regimes).

    It in on the list of Books I Want to Write When I Have the Time (HA!) list.

    4
  49. mattbernius says:

    @Steven L. Taylor:
    Not for nothing but I would read the hell out of that book.

    ShutUpAndTakeMyMoneyMeme.gif

  50. JohnSF says:

    @Steven L. Taylor:
    Don’t forget Gaelic Football (like Aussie rules with violence turned up to 11), Rugby League (as opposed to Union), the Eton Wall Game, and the daddy of them all Royal Shrovetide Football (not so much a sport, more like irregular warfare LOL)

  51. JohnSF says:

    I remmeber years ago seeing a BBC documentary slot on the Shrovetide game.
    Some locals talking:
    “A couple o’ years back it just degenerated into a punch up.”
    Second guy:
    “How could y’ tell?”

    Extract from The Rules.
    “Committing murder or manslaughter is prohibited. Unnecessary violence is frowned upon.”

  52. CSK says:

    @An Interested Party:
    Someone must have finally gotten through to Trump with that message, because he abruptly curtailed his Twitter rampage.

  53. Just nutha ignint cracker says:

    @Kathy: They apparently do; almost every year, I get a letter from them saying that I did the math wrong and giving me a check to make up the balance. Some times it’s a bill.

    @Tyrell: You definitely need a new tax person if you paid $20,000 dollars in Federal taxes on $50,000 in earnings. I don’t think I paid a tenth of that and our incomes appear to be similar size.

    @An Interested Party: It’s possible that Tyrell is using the “total tax” bill dodge to argue for lowering his Federal rate, but I prefer to think he’s just innumerate. 😉